Sharing Is Legitimate

By various steps along the past 30 years, not-for-profit file sharing between individuals for works covered by copyright was rendered illegal in most countries1 and most use cases. This does not prevent me from stating loud and clear that the act of taking a digitally published work one has obtained2, copying it, making it available to others or sending it to them is legitimate and an essential contribution to the establishment of a common culture.

I intend to defend this position by developing the following arguments: making a case for the usefulness of sharing as delimited above, and defending that it is legitimate even without the authorization of authors; showing that when sharing is forbidden, impoverished cultural practice tends to replace empowering ones; and finally stressing that the prohibition of sharing will be regarded one day as a strange form of obscurantism.

1. Sharing is useful and it is legitimate to share digital works authored by others

For centuries, people were free to transmit to others cultural works such as books or records as they wished. This was codified under two separate mechanisms: the first sale doctrine and the recognition that acts in the private sphere were none of the business of right holders3. It was accepted that such a transmission of works between individuals is at the root of a shared culture, and in the end benefits authors and other contributors.

With the development of information technology, digitization and the Internet, the scale and scope of sharing was immensely extended. Its usefulness did not disappear in the process. Actually, sharing has now acquired another function: it counterbalances to a certain degree the ability of centralized media to concentrate attention on a limited number of works for the purpose of maximizing per title profits. In the digital era, in the absence of large scale sharing providing an alternative non-market distribution channel, access to culture would be severely impoverished.

From 2006, I was able to prove a major positive impact of file sharing on the diversity of attention to works, first for voluntary sharing4, and more recently for eDonkey/eMule P2P sharing5.

2. Rewarding and financing the production of digital works shared on the Internet is useful per se, not as a compensation for harm

Information technology and the Internet give rise to an explosion of creativity, expression in the public sphere and information exchange. The number of people involved in these activities, and among them the number of persons who wish to invest more time and energy to produce more elaborate works is in constant growth. Finding how to provide many with the means to contribute better to the digital cultural commons is clearly a difficult challenge, whether this financing takes the form of rewards for works that have been produced and appreciated or of support for the production of new works. As the added-value of information technology for creation and access to culture is maximized when there are no transaction costs for access and usage, new schemes for pooling resources and distributing them will be needed, beyond public susbidies and markets that will still play an important role. Some schemes already exist, resting on bottom-up voluntary pooling such as Kickstarter or Flattr, for instance. However, many analysts, including myself, think that statutory (compulsory) pooling of resources for all members of the digital society will be necessary to address the huge scale of digital creation and expression. Whatever schemes will develop, one thing is certain, their relevance has nothing to do with compensating existing industries for their alleged pains6. First because, considered as a whole, these industries are doing very fine7. Second, because what does not go well in each of them, that is the concentration of attention and revenues on a limited number of artists and assignees, will be in part alleviated by sharing when it will be made licit. The resources of a greatly enlarged set of authors, performers and other contributors will be significantly increased if a socially fair Internet-specific financing system8 is put in place. The rest is a matter of a strong media competition policy.

3. When sharing is made illegal, bad technology and functionality prevails over culturally interesting ones

The present situation of stigmatizing and repressing sharing is deeply unsatisfactory from a cultural viewpoint. Legitimate user rights are denied and sharing does not disappear, but is driven towards the use of technology that is culturally impoverishing, such as streaming. Streaming (for instance) maintains most users9 in a situation of passive reception when technology could enable them -when they wish so- to involve themselves in the full spectrum of activities that go from critical reception to amateur or semi-professional production. The specific war conducted (by technological, legal and brain-washing means) against peer-to-peer file sharing is an absurd cultural regression. The net result of 15 years of stigmatization of file sharing is to maintain a large segment of the population in the realm of passive consumption and to permit a minority to enjoy the benefits of cultural commons only in a confined, stigmatized and polluted environment.

4. One day, one will wonder how it was possible for some to dare forbidding others to distribute culture

To act as a voluntary distributor of cultural works (not only without aim of profit, but generally incurring some costs for it at least indirectly) is a fundamental capability of close to 2 billions human beings. One day, one will wonder how it was possible for some of us to want to deprive their fellow human beings from this capability. In ancient Greece, when alphabetic writing spread and permitted to transcribe speech, some priests and philosophers saw this capability as sacrilege and destructive10. Fortunately, writing was not outlawed, but it took millenaries before in spread to the vast majority of the population. Let’s hope it won’t take as long, not even a century, not even ten years, to recognize sharing.

3. I do not refer here to the “home copying” laws that have seriously cornered the rights of use in the private sphere by subjecting them to a compensation. What I stress is that for centuries, copyright and author rights had simply nothing to say regarding acts in the private sphere.

5. Philippe Aigrain, Sharing: Culture and the Economy in the Internet Age, to appear in 2011

6. If necessary, one will be able to show that creators or even investors are more than compensated for any damage they would truly suffer at the occasion of the necessary reform of copyright or author right law for the recognition of the right to share. However, it is not on this basis that one can design the relevant financing mechanisms for creation shared on the Internet.

7. See Felix Oberholzer-Gee and Koleman Strumpf, File Sharing and Copyright, NBER Series, 2010, p. 19-55. and my own work using other definitions of the perimeter of economy in each media.